Bayard’s Notebook, 224
Court of Common Pleas of Delaware, Kent County.
December, 1797.
Upon nulla bona pleaded, it appeared that £74.17.6 were in the hands of the garnishee, levied by him as Sheriff of New Castle County upon an execution at the suit of Skillington and wife. The judgment on which the execution issued was grounded on a bond assigned to Skillington and wife in consideration of a debt due to the wife as administratrix of one Rothwell, her former husband. The attachment was served on the garnishee in April, 1792, Skillington having died in the month of March preceding, being survived by his wife.
Upon this case Miller, for the plaintiffs, in attachment contended that they were entitled to judgment for the money in the hands of the garnishee. That the assignment of the bond enured to the husband and wife in their own right and not to the wife as administratrix. That the money, when levied, belonged to the husband solely, and therefore did not survive on his death to the wife. He cited 4 Vin.Abr. 180 pl. 1, n. pl. 3, 181, pl. 2, n; 1 Bac.Abr. 289.
Bayard, contra, insisted that the assignment followed the consideration and that the debt after assignment was assets in the hands of the wife as administratrix. That the goods which the wife had as administratrix were not by the law given to the husband, and that they did not belong to the husband, even in the case of his surviving and cited Co.Litt. 351a; 4 Vin.Abr. 183, pl. 5, 181-182, pl. 3-4. That in the present case, upon another principle, the right of the husband had determined before the attachment was levied. That the debt being jointly due to the husband and wife, upon the death of the husband survived to the wife.
Page 457
PER CURIAM.
The bond in question, having been assigned to Skillington and his wife, and the suit being brought, judgment obtained, and execution issued in the name of both, the money in the hands of the sheriff must belong jointly to the husband and wife, and we conceive, therefore, upon the death of the husband it belonged to the wife.
There was a verdict accordingly against the plaintiffs.
[At this point in the manuscript a note appears, “See post 249 Trustee of Loan Office v. Maxwell, which should have been here inserted.” For this case, see below Bayard’s Notebook, 249.]